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Financial compensation

23. There is no question that, as the Trial Chamber recognized and held in the Impugned Decision, Mr. Rwamakuba is entitled to an effective remedy for the violation of his right to legal assistance as well as his right to an initial appearance without delay. Trial Chamber II recognized the existence of these violations,[1] and the Appeals Chamber indicated that Mr. Rwamakuba could “seek reparation” for them.[2] Moreover, the Appeals Chamber, after considering nearly identical violations in the Kajelijeli Appeal Judgement, reached the same conclusion and, accordingly, reduced the sentence imposed in that case.[3] The two principal questions for the Appeals Chamber are whether the Tribunal is empowered to award financial compensation as an effective remedy for a violation of the fundamental rights of the accused and, if so, whether it was appropriate to award Mr. Rwamakuba financial compensation as an effective remedy in the present case.

24. The Appeals Chamber has previously held that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy.”[4] It follows very plainly from the Appeals Chamber’s decisions in the Barayagwiza and Semanza cases that a remedy for a violation of the rights of the accused may include an award of financial compensation, as both decisions envisioned financial compensation being fixed at the time of judgement, if the accused were acquitted.[5] In this respect, the Appeals Chamber is not persuaded by the Registrar’s submissions that the absence of an explicit provision providing for financial compensation in the Statute for violations of the rights of the accused as well as the Security Council’s decision not to amend the Statute to expressly include such a remedy indicate that it is not available.

25. First, while there is no right to compensation for an acquittal per se, there is a right in international law to an effective remedy for violations of the rights of the accused, as reflected in Article 2(3)(a) of the ICCPR.[6] In this respect, the ICCPR specifically envisions compensation as an appropriate remedy in certain circumstances, such as the case of unlawful arrest or detention.[7] The Appeals Chamber has previously held that the ICCPR is a persuasive authority in determining the Tribunal’s powers under international law.[8]

26. The authority in the Statute to provide an effective remedy flows from Article 19(1) of the Statute, which obliges the Trial Chambers to ensure a fair trial and full respect for the accused’s rights. The existence of fair trial guarantees in the Statute necessarily presumes their proper enforcement.[9] In this respect, the Appeals Chamber observes that the Statute and Rules do not expressly provide for other forms of effective remedy, such as the reduction of sentences, yet such a remedy has been accorded on several occasions.[10] Moreover, the submissions of the Presidents of this Tribunal and of the ICTY seeking an amendment of the Statute from the Security Council to provide for financial compensation do not suggest that an effective remedy in the form of financial compensation cannot be ordered and paid in the absence of an express provision. At the time of making the submissions, the Appeals Chamber had already issued two decisions envisioning possible awards of compensation to remedy fair trial rights violations and the submissions themselves recognized the authority of the Tribunals to order financial compensation as an effective remedy in the form of an “exceptional ruling” or an “ex gratia payment”. [11] The request for a statutory amendment merely expressed the preference of the Presidents for a specific statutory provision so that it would be beyond dispute that any award of compensation would be paid “according to law”.[12] Against this backdrop, the Appeals Chamber will not assume that the Security Council’s inaction was intended to interfere with the Tribunal’s inherent authority to order compensation in appropriate circumstances. Accordingly, the Appeals Chamber can identify no error of law on the part of the Trial Chamber in finding that it had the authority in general to award an effective remedy for the violations of Mr. Rwamakuba’s rights as an accused person, including financial compensation.

27. The question remains, however, whether it was appropriate for the Trial Chamber to award Mr. Rwamakuba financial compensation in the present case, as part of the remedy for the violations of his right to legal assistance and to an initial appearance without delay. The jurisprudence of the Appeals Chamber reflects that the nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[13] In practice, the effective remedy accorded by a Chamber for violations of an accused’s fair trial rights will almost always take the form of equitable or declaratory relief.[14] In the past, the Appeals Chamber has envisioned financial compensation as a form of effective remedy only in situations where, amongst other violations, an accused was impermissibly detained without being informed of the charges against him.[15] This is in line with Article 9(5) of the ICCPR which provides for an enforceable right to compensation in the event of an unlawful arrest or detention.[16]

28. Bearing this in mind, the Appeals Chamber recalls that Mr. Rwamakuba was detained in the Tribunal’s detention facilities for a total of 167 days from the date of his transfer on 22 October 1998 until his initial appearance held on 7 April 1999, of which he spent 125 days without assigned counsel.[17] As the Appeals Chamber in the Kajelijeli case already pointed out in relation to the rights of a suspect,[18] a judge is called upon to make an accused familiar with the charges, to verify an accused’s identity, to examine any obvious challenges to the case, to inquire into the medical condition of an accused, and to notify a person enjoying the confidence of the detainee[19] and consular officers.[20] The Appeals Chamber further stressed that:

Rule 62 is unequivocal that an initial appearance is to be scheduled without delay. There are purposes for an initial appearance apart from entering a plea including: reading out the official charges against the accused, ascertaining the identity of the detainee, allowing the Trial Chamber or Judge to ensure that the rights of the accused while in detention are being respected, giving an opportunity for the accused to voice any complaints, and scheduling a trial date or date for a sentencing hearing, in the case of a guilty plea, without delay.[21]

The Appeals Chamber considers the violations of Mr. Rwamakuba’s rights attributable to the Tribunal and financial compensation to be an effective remedy. The nature of the violations suffered by Mr. Rwamakuba is no less significant than in other cases where such compensation was envisioned to be fixed at the time of judgement if the accused were found not guilty (as opposed to a reduction in sentence in case the accused were found guilty).[22] Accordingly, the Appeals Chamber can identify no error on the part of the Trial Chamber in finding that financial compensation is an appropriate form of an effective remedy to address the violations of Mr. Rwamakuba’s rights.

29. Moreover, the Appeals Chamber is not persuaded by the Registrar’s submission that the award of two thousand United States dollars has no basis in fact. It is not disputed that Mr. Rwamakuba’s suffered serious violations of his fundamental rights. In the Kajelijeli Appeal Judgement, the Appeals Chamber did not demand or cite additional proof of specific harm in according an appropriate remedy in that case, which involved a significant reduction in sentence.[23] Moreover, as noted above, the Appeals Chamber in the Barayagwiza and Semanza cases envisioned the award of compensation, in the event of an acquittal, to be fixed at the time of judgement.[24]

30. Finally, the Appeals Chamber also agrees with the Trial Chamber that internal institutional considerations related to the execution of an order, including budgetary matters, are separate considerations from the Tribunal’s authority to award an effective remedy in the form of financial compensation in appropriate circumstances and in compliance with its international obligations.[25] Budgetary considerations cannot interfere with the Tribunal’s authority to award financial compensation as an effective remedy for a human rights violation; similarly, at the domestic level, a State cannot advance the argument that there are no budgetary resources available to justify a refusal to award compensation. The Appeals Chamber has confirmed the Tribunal’s general authority to award compensation in appropriate and limited circumstances. In addition, it has affirmed the reasonableness of the award in the present case.

[3] Kajelijeli Appeal Judgement, paras. 237, 242-250, 253, 323, 324 (finding violations of the right to counsel, resulting from a failure to provide duty counsel in accord with Rule 44bis of the Rules, and the right to an initial appearance without delay). The Appeal Chamber noted that the accused was in the custody of the Tribunal for a total of 211 days prior to any initial appearance during which he was without assigned counsel for 147 days. Kajelijeli Appeal Judgement, para. 237. In the present case, Mr. Rwamakuba was detained in the Tribunal’s detention facilities for a total of 167 days from the date of his transfer on 22 October 1998 until his initial appearance held on 7 April 1999, of which he spent 125 days without assigned counsel. See supra para. 16. It should also be noted, however, that the Appeals Chamber found additional violations in the Kajelijeli case. See Kajelijeli Appeal Judgement, para. 251, 252 (finding that the rights of the accused were violated based on his arbitrary provisional detention in Benin without charge for 85 days, and detention in Benin without appearance before a Judge for a total of 95 days, which was attributable to the Prosecution).

[5] Semanza Appeal Decision, p. 34 (“[T]hat for the violation of his rights, the Appellant is entitled to a remedy which shall be given when judgement is rendered by the Trial Chamber, as follows:(a) If he is found not guilty, the Appellant shall be entitled to financial compensation [...]”)(emphasis added); Barayagwiza Appeal Decision, para 75(iii)(“DECIDES that for the violation of his rights the Appellant is entitled to a remedy, to be fixed at the time of judgement at first instance, as follows: a) If the Appellant is found not guilty, he shall receive financial compensation […]”)(emphasis added).

[6] Article 2(3) of the ICCPR states: “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.” See also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147 (16 December 2005).

[7] See, e.g., ICCPR, Article 9(5)(“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”).

[9] Cf. Stanković Appeal Decision, para. 14 (“It is true, as the Appellant points out, that the Statute of the Tribunal does not contain an explicit legal basis for Rule 11bis. But the explicit language of the Statute is neither an exclusive nor an exhaustive index of the Tribunal’s powers. It is axiomatic under Article 9 of the Statute that it was never the intention of those who drafted the Statute that the Tribunal try all those accused of committing war crimes or crimes against humanity in the Region. The Tribunal was granted primary – but explicitly not exclusive – jurisdiction over such crimes. In this regard, it is clear that alternative national jurisdictions have consistently been contemplated for the ’transfer’ of accused.”)(internal citations omitted).

[12] ICTR Submission, p. 4 (“In this connection, it is essential to note that the United Nations would not be able to comply with its international obligations simply by paying the individuals concerned an appropriate sum in compensation. The obligations which are codified within article 9, paragraph 5, and article 14, paragraph 6, of the International Covenant on Civil and political Rights are not simply to ensure that persons whose cases fall within the scope of these provisions are compensated simpliciter, but rather to guarantee that they are vested with ‘an enforceable right to compensation” (in the case of article 9(5)) and are compensated “according to the law” (in the case of article 14 (6)”); See also ICTY Submission p. 5.

[13] Semanza Appeal Decision, para. 125.

[14] See, e.g., Zigiranyirazo Appeal Decision, para. 24 (excluding testimony taken in violation of an accused’s right to be present during his trial); The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, paras. 164, 165 (setting aside a guilty verdict where accused’s right to notice of charges against him was violated); Kajelijeli Appeal Judgement, para. 324 (reduction of sentence for period of unlawful arrest and detention in Benin and right to legal assistance and initial appearance at Tribunal); Georges Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 37 (recognition of violation and warning of possible future sanctions for the Prosecution’s violation of Rule 68 of the Rules).

[22] See, e.g., Kajelijeli Appeal Judgement, para. 323 (considering an accused’s detention without being informed of the charges against him and his detention without an initial appearance as equally impermissible).

[23] Kajelijeli Appeal Judgement, paras. 253, 323, 324. The Appeals Chamber set aside the convicted person’s two life-sentences and fifteen years’ sentence imposed by the Trial Chamber and converted them into a single sentence consisting of a fixed term of imprisonment of 45 years.

10. The Appeals Chamber can identify no error on the part of the Trial Chamber in finding that it lacked authority to award compensation to Mr. Rwamakuba for having been prosecuted and acquitted. As the Trial Chamber observed, the Statute and Rules of the Tribunal do not provide a basis for compensation in such circumstances.[1] Nor is any found in the jurisprudence of this Tribunal or of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). In the past, the Presidents of this Tribunal and the ICTY requested the Security Council to amend the Statutes of the two Tribunals to provide for such authority.[2] These efforts were unsuccessful and underscore the inability of the Tribunal to provide such a remedy in either its express or implied powers.[3] As the Trial Chamber observed, the practice of providing compensation for an acquittal varies at both national and international levels.[4] In this respect, the International Covenant on Civil and Political Rights (“ICCPR”) refers to a right of compensation only where an individual already convicted by a final decision has been exonerated by newly discovered facts.[5] A person in such circumstances who has been convicted and has suffered punishment as a result of the conviction may receive compensation.[6] Mr. Rwamakuba, however, was not convicted and punished; he was acquitted in the first instance.

[2] See Letter dated 28 September 2000 from the Secretary General Addressed to the President of the Security Council, U.N. Doc. S/2000/925* (6 October 2000)(annexing letter from President Pillay of the Tribunal)(“ICTR Submission”). See also Letter dated 26 September 2000 from the Secretary General Addressed to the President of the Security Council, U.N. Doc. S/2000/904 (26 September 2000)(annexing letter from President Jorda of the ICTY)(“ICTY Submission”); Letter dated 18 March 2002 from the Secretary General Addressed to the President of the Security Council, U.N. Doc. S/2002/304 (18 March 2002)(annexing letter from President Jorda of the ICTY). These letters specifically annexed a copy of Article 85 of the ICC Statute.

[3] Cf. The Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Appeal, 1 September 2005, paras. 14-17 (holding that the Security Council’s endorsement of the ICTY’s Completion Strategy, which included the referral of cases to national jurisdictions, reflected that the Tribunal was authorized to do so under the Statute)(“Stanković Appeal Decision”).

[4] Impugned Decision, paras. 25, 27.

[5] Article 14(6) of the ICCPR provides: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”